Media and Communications Policy : Media Policy & First Amendment Foundation : The Media Institute : Free Speech, Media Regulation, Content Controls

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One of the most intractable and tragic aspects of American life is the plight of so many urban youth. The societal cost of this state of affairs is great; the human costs incalculable.  In the midst of the despair, however, sometimes come programs that make a difference.

An example that became the basis of the 2005 documentary, “Mad Hot Ballroom,” is the New York City public schools program that teaches ballroom dancing to fifth graders from different parts of the city.

Another example is the Boston Debate League, an organization that works with the Boston public schools to support academic teams in local high schools.  The BDL’s mission statement is to “measurably improve students’ academic achievement and their expectations of themselves … through academic debate.”

As the group explains it, “All students can realize the benefits from competitive policy debates.  In fact, the students who benefit the most are those who are currently not engaged in school and are in danger of dropping out....  In particular, we believe that policy debate can help reduce the achievement gap for urban students of color.”

And the facts seem to bear that out.  A University of Missouri study found that after one year in urban debate leagues, debaters attended school more frequently, improved their GPAs by 10 percent, and achieved a 25 percent increase in literacy scores.

Another Boston success story is its annual marathon, which this year will be run on April 16, and therein lies a connection to the BDL.  By a felicitous coincidence, The Media Institute’s vice president, Rick Kaplar, will be running in this year’s Boston Marathon, and he’ll be running for the Boston Debate League.

As Rick put it in a recent e-mail, “I like the idea of running for the Boston Debate League because debating is all about speech and freedom of expression – and it brings this form of speech to at-risk kids who otherwise wouldn’t have the opportunity.”

As set by the marathon organizers, the Boston Athletic Association, all runners for charity teams are required to raise a fixed amount of money for their teams in order to participate.  The Media Institute has made a contribution to the BDL in this regard, and if any of those who are regular readers of this blog would like to make a contribution as well, I know it would be greatly appreciated by Rick, and of material help to the Boston Debate League.

Here’s a link that will take you where you need to go for information about how to do that: “Team Debate.” And thanks for your interest and support.

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Is it appropriate to defend free speech even when it’s harsh or degrading?  Whatever their political views, do people have a right to express them?  Not for the first time, such questions are being debated in the court of public opinion.

The proximate reason for the debate, this month, is some nasty things said about a law student by Rush Limbaugh, a man who – like Glenn Beck, Keith Olbermann, Michael Moore, Bill O’Reilly, Ed Schultz, Michael Savage, and Bill Maher – makes his living by saying provocative and sometimes ugly things through the media of TV, film, or radio.

For those who believe in freedom of speech, there’s a little bit of good news amid the bad in the Limbaugh kerfuffle, but a couple things demand to be acknowledged right from the start: Neither Rush, nor any of the other on-air opinionmeisters, are scholars, statesmen, or intellectuals.  They are, instead, political entertainers whose appeal reaches as far as those who share their political views, and not one inch further.

This, and one other thing: The coordinated attacks on Limbaugh and his show’s advertisers is the product of the calculated strategy of a group – Media Matters for America (MMA) – that was created precisely to try to silence, by whatever means, right-leaning organizations and individuals.

The bad news in the Limbaugh affair is that while some people are recommending that the FCC take him off the air (Jane Fonda and Gloria Steinem), or think he should be prosecuted (Gloria Allred), and after a number of his advertisers have been cowed into dropping his show, most of the media and journalism organizations one might expect to defend him have remained silent.

From the professional journalism societies to the university-based journalism reviews and the legacy “First Amendment” groups, virtually nothing has been issued in opposition to MMA’s tactics of intimidation.

It could, of course, be argued that MMA is merely exercising its own free speech rights, and that is certainly true, but that fact need not strike dumb those people who, exercising their free speech rights, could and should criticize MMA’s tactics.

According to an AP story, the next step in the war against Limbaugh is a radio ad campaign in eight cities, using as a template MMA’s earlier campaign against Glenn Beck.  Meanwhile, the head of Media Matters, David Brock, is gloating about the negative impact his organization’s efforts are having on Limbaugh’s advertisers.

In a piece published in Politico, titled “Ad exodus dooms Limbaugh’s model,” Brock says he is confident, “seeing the reaction over the previous two weeks, that sponsors will take their ad dollars elsewhere.”  He also says, in a sentence sure to be admired by fanatics and totalitarians everywhere, that MMA “along with numerous other groups, have begun to educate (emphasis added) advertisers about the damage their financial support of Limbaugh’s program can do to their brands.”

Looking beyond the campaign against Limbaugh per se,one can see that if this kind of thing persists it won't end well for freedom of speech.  Already, for instance, a piece in the American Spectator calls for Rush admirers to contact those of Limbaugh’s advertisers who have dropped his show, the kind of thing that, along with campaigns like MMA’s, may in time have the practical effect of moving advertisers out of radio altogether.

In addition, there’s the distinct possibility that conservative groups will ape the tactics used against Limbaugh, and begin themselves to use advertiser intimidation and/or government policy to effectively shut down speech they don’t like.  Just last week Brent Bozell, head of the conservative media watchdog group Media Research Center, which has used both tactics in the past, said of the MMA campaign: “We all have free speech.”

As mentioned at the outset, there’s a little bit of light breaking through the gloom of this matter.  Though he doesn’t reference the Limbaugh affair, liberal law professor Jonathan Turley penned a piece in the Los Angeles Times this month titled “Free speech under fire,” in which he bemoans the fact that “Western nations appear to have fallen out of love with free speech and are criminalizing more and more kinds of speech through the passage of laws banning hate speech, blasphemy, and discriminatory language.”

At about the same time, liberal icon Michael Kinsley wrote a piece for Bloomberg titled “Case Against Case Against Rush Limbaugh.”  Among other poignant observations, Kinsley says this:

Do we want conservatives organizing boycotts of advertisers on MSNBC, or either side boycotting companies that do business with other companies who advertise on Limbaugh’s show, or Rachel Maddow’s?...

As we all know, Limbaugh’s First Amendment rights aren’t involved here – freedom of speech means freedom from interference by the government.  But the spirit of the First Amendment, which is that suppressing speech is bad, still applies.  If you don’t care for something Rush Limbaugh has said, say why and say it better.

In a perfect world, one wouldn’t need to be a policy wonk or a constitutional expert to understand the wisdom in this. But in this world, who knows?                                             

This piece was first published in TVNewsCheck on March 26, 2012. The views expressed above are those of the writer and not those of The Media Institute, its Board, contributors, or advisory councils.

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Political gift giving, whether in support of candidates for public office or ideologically active nonprofit organizations, is fraught with the risk that activists of a different stripe (or journalists who are themselves of a different stripe) may take offense and retaliate. 

Such has been the experience of the wealthy Koch brothers, Charles and David, two long-time funders of libertarian policies, politicians, and organizations who have been attacked without surcease by activists and journalists for about two years.  

In part, of course, attacks on them have happened because they’re easy targets.  As politically active billionaires, the Kochs quite naturally attract attention, and for all its intellectual strengths, libertarianism is a long way from being the “people’s choice.” 

Additionally, the Kochs have borne some of the brunt of the criticism that's accompanied the Supreme Court’s correct undoing, in its Citizens United decision, of aspects of the McCain-Feingold Act.  From that time to this, advocates of campaign finance “reform” have been shrilly condemning  PACs, and particularly those, like the Koch-controlled Americans for Prosperity, that favor Republicans.

The motives of their critics aside, there have long been aspects of the Kochs’ philanthropy that are tiresome.  Take, for instance, Koch Industries’ and the Koch Foundation’s embrace of what they call “Market-Based Management,” a management philosophy developed by Charles Koch, and one that, it’s claimed, “can provide great value to non-profit organizations.”

A thing of some complexity – MBM features 10 “Principles” and five “Dimensions” – it can seem like about nine principles and four dimensions too many when pushed on grantees.

Now, though, comes the remarkable news that the Kochs have filed a lawsuit against the venerable Cato Institute, something that goes beyond the merely annoying to the virtually incomprehensible.  In a word, they want to take over Cato and fire its president and co-founder, Ed Crane.

To be fair, the Kochs have an important history with Cato.  Like Crane, Charles Koch was also a founder of the think tank, and the Koch Foundation has given millions to Cato over the years.  So if this were simply a management issue – that they wanted to replace Crane with someone else, or put new people on the Board – they’d clearly have the right to propose the idea, and whatever the merits of it, it wouldn’t be seen as an impossibly chowderheaded scheme.

Alas, issues with management are not the apparent reason for their lawsuit.  Instead, the Kochs’ designs on Cato seem to be a desire to more closely align the think tank’s policy analyses with the Kochs’ partisan political efforts, through such as Americans for Prosperity.

Taking advantage of the unusual fact that the nonprofit Cato has “shareholders” with the authority to select members of Cato’s board, the Kochs have lately been attempting to gain a majority among the directors (they already have seven of 16).

In a blog published on the Volokh Conspiracy on March 3, a senior fellow at Cato provided some background by revealing what was said at a meeting in November of last year between a Koch delegation and the chairman of Cato, Bob Levy:

They told Bob that they intended to use their board majority to remove Ed Crane from Cato and transform our Institute into an intellectual ammo-shop for Americans for Prosperity….  They’ve frequently complained … that Cato wasn’t doing enough to defeat President Obama in November and that we weren’t working closely enough with grass roots activists like those at AFP.

During a recent interview, Crane expressed contempt for those of the Kochs’ critics whose motive is political or ideological, even as he spoke of the “insanity” in the Kochs’ attempt to turn Cato into a partisan outfit.  “Were they to do it,” he said, “it would undo overnight 35 years of work and hard-won respect.”

Even though he personally would be a certain casualty if the Kochs succeed in their takeover attempt, Crane betrays little concern about that aspect of the battle at hand.  One might suspect that this is because, after 35 years at the helm of Cato, he’s had a good run, or because, like many of us, he’s reached an age where, professionally speaking, he can see the tunnel at the end of the light.  Or maybe he’s just confident that the Kochs won't prevail.

Whatever, a few things are clear.  It’s been on Crane’s watch that Cato has grown into a leading U.S. think tank, along the way becoming one of the stoutest defenders of free speech in the country.  And none of that would have been possible if Cato had been perceived as a political front group.

One of Market-Based Management’s "Principles" is humility, described this way: “Practice humility and intellectual honesty.  Constantly seek to understand and constructively deal with reality to create value and achieve personal improvement.”

One wonders how much the Kochs thought about this Principle before they embarked on such an intellectually dishonest and destructive campaign.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

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Imagine that you’re the head of a consumer products company, and it’s revealed to you that about half the people in the country don’t like some aspect of your product.  Is there any chance that you wouldn’t try to address that problem?

It is, of course, a rhetorical question.  So what, then, explains why the CEOs of the parent companies of the so-called mainstream media (MSM) – whose news operations are seen by Republicans as politically biased – do nothing about it?  

Several theories come to mind: It’s not a new problem; the “firewall” that separates the editorial side of media companies from the business side dissuades and/or impedes editorial reforms that issue from corporate management; the people who run the business side of these companies approve of their news departments, whatever Republicans think of them.

Taking them in order, it’s indeed true that rank-and-file Republicans and conservatives have seen bias in the mainstream media for many years.  But in earlier times this antipathy wasn’t as great as it is today, and for all their unhappiness there was no other place for them to go.  Pretty much the whole of the news business nationally was the province of the Big Three TV networks, the wire services, the newsweeklies, the Washington Post, and the New York Times.

These days, though, according to a Gallup survey released last September, 75 percent of Republicans think the media are too liberal, and all the candidates for the GOP presidential nomination have expressed similar criticism, some with brio and to roaring approval. Moreover, there are many places – from talk radio to FOX News to Republican or conservative websites – where they can, and do, go for news and commentary more to their liking these days.

The editorial firewall, a useful convention that prevents the wholesale marketing of news to advertisers, is a better explanation, though still not compelling.  Publishers, after all, have dominion over editors, not the other way around.

Then there’s the discomfiting idea that media company CEOs like the editorial slant that Republicans believe is biased against them, either because they don’t share the Republicans’ political views, or because they believe that the Republican/conservative criticism is without foundation.

Though this may play a role with some of the MSM, it too seems too farfetched to be a controlling factor.  After all, the MSM are for-profit companies, most all of which are publicly owned and traded.  It would be strange indeed if the CEOs of these companies would put their own political views ahead of their companies’ profitability.

So what, then, explains it?  The view from here is that it may be a little bit of all these things, but that it's primarily something else.

The lugubrious truth about the MSM these days is that all of them are suffering, to one degree or another, from lost readership/viewership and diminished advertising revenue.  And that, in a nutshell, may be why journalism per se is not front and center in the thinking of media company CEOs.

In the face of threats like that posed by the ad-grabbing tactics of Google, and the ubiquity and popularity of the social media, it’s likely that the CEOs of the legacy media don’t have much appetite for involving themselves in what – especially because of the editorial firewall – would be a contentious and quite possibly futile effort in any case.

So that, perhaps, is an explanation, though almost certainly not enough of one to satisfy Republican critics.  Plus ca change, plus c’est pareil.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

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Though the final chapter in the legislative history of the copyright bills hasn’t yet been written, a couple things are obvious even now: The tech industry has demonstrated great political clout through the mobilization of its users and fan base; and the industry lobby, led by Google, will say and do pretty much anything to advance its commercial interests.

This provides the background for what happened within just a few days last week, as Congress was flooded with calls and mail, and petitions were signed by millions, in opposition to bills whose intent was to provide an effective way to combat content infringement on rogue websites abroad.

Didn’t matter that most fans of social media, file-sharing, blogs, and the like know next to nothing about communications policymaking, or even the details of the laws they were moved to oppose.  They know what they like, and dislike, and when manipulated into seeing the copyright bills as a threat they responded in great numbers.

None of which, of course, is to wonder why people feel more of a kinship with things like the social media than they do with the mainstream media.  The one-way and “one-to-the-many” aspects of the old media don’t empower people, or allow for their personal expression, in the manner of blogs or social media like Facebook and YouTube.

But the reason so many people were disposed to dislike the copyright bills, and their knowledge of what was actually in them, are two different things.  What moved them to act on their dislike was yet another.  For these parts of the story we have to look to the tech industry lobby, and Google most importantly.  It was Google that floated the canard that passage of the bills would forever change “the Internet as we’ve known it.”

The irony in Google’s claim was apparently lost on most of the media, tech and mainstream, which may explain why so few reporters pointed out that this alleged threat is word-for-word what the company said, 13 years ago, in opposition to another copyright bill (the Digital Millennium Copyright Act), passage of which has since proven to be a positive boon to Internet companies.

It may also explain why so few reporters pointed out that Google’s claims about the copyright bills – as precursors to the regulation of the Internet – are not just over the top but hypocritical.  It was, after all, Google that successfully lobbied, with the active help of a majority of FCC Commissioners, for so-called “network neutrality” regulations, the precedent of which provides not for just speculative but “here and now” regulation of the Internet.

Still, if crass exaggeration and hypocrisy were all that Google displayed in this regard, one might be inclined just to dismiss it as boys being boys.  But it didn’t stop there.  Google, and other groups that should know better, also gave expression and currency to the bunkum that the copyright bills amounted to an assault on the First Amendment.

That this argument was utterly demolished by the country’s leading First Amendment expert, Floyd Abrams, didn’t give them a moment’s pause, with the upshot being that this nonsense was parroted by all sorts of people as a reason for rejection of the bills.

In August of last year, The Media Institute filed a white paper with the Federal Trade Commission titled “Google and the Media: How Google is Leveraging its Position in Search to Dominate the Media Economy.”  Among other things, the paper demonstrated the ways in which Google profits from copyright infringement; that indeed the use of other people’s content without their permission has been at the heart of the company’s business plan.

Though the paper didn’t recommend any particular remedy, it asked the FTC to intervene in a way that would prevent the media economy from being dominated by a single entity.  Google’s conduct regarding the copyright legislation shows that, far from pulling back, its interest in this kind of domination is growing apace.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  This piece was first published in the Dallas Morning News on Jan. 25, 2012.

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By guest blogger LAURENCE H. WINER, professor of law, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.   

“You taught me language, and my profit on’t is I know how to curse.”  – Caliban in The Tempest

Here’s a question the late language maven, William Safire, might have pondered listening to the recent Supreme Court oral argument in the Fox and ABC broadcast indecency cases.   What is truly “indecent” in the normative, Webster’s Third sense of the word as “not conforming to generally accepted standards of morality”:

(a) “crush videos” depicting actual, gruesome torture and killings of animals for purposes of sexual titillation;

(b) violent video games encouraging a player’s virtual infliction of grotesque mayhem on realistic human avatars;

(c) purveyors of vicious hate speech shamelessly exploiting military funerals to garner media attention; or

(d) fleeting, meaningless uses on television of commonly used expletives and the brief showing of a naked human buttocks to dramatize an awkward family setting?

Hint for those challenged since high school by multiple-choice tests: The answer is not (d).  Yet, the same justices who very recently, and most appropriately, have had no trouble deciding that the First Amendment robustly protects each of the first three categories of expression seem strangely conflicted about so-called “indecency” in the broadcast media.  George Carlin must still be laughing.

To be sure, for many years broadcasters have been their own worst enemy.  Before the 1978 Pacifica case, mainstream broadcasters shunned controversy, bowing to advertising dollars and what they assumed their audiences would not accept in adult entertainment programming.  So terrible precedent was set by the repeated “verbal shock treatment” of the Carlin monologue even when broadcast as a serious commentary on societal language taboos.  More recently, rather than forcing the issue in a favorable posture (and, perhaps, preserving their competitive position versus cable and satellite) by routinely presenting in prime time, with appropriate notice of the content, critically acclaimed adult dramas, broadcasters wound up before the Supreme Court defending inane comments of sophomoric “actresses” (that last term being used advisedly).

To be fair, however, such timidity may be understandable by a media industry anomalously denied full First Amendment protection throughout its history and at risk for increasingly large fines from the government agency that holds its license.  The Supreme Court, however, has no comparable excuse for not finally disavowing Pacifica.

In oral argument of the Citizens United case, Chief Justice Roberts noted: “[W]e don’t put our First Amendment rights in the hands of [government] bureaucrats.”  In U.S. v. Stevens, the “crush videos” case, he wrote for eight justices: “[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige.  We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”  And in Snyder v. Phelps, the military funeral case, his majority opinion eschews reliance on a “highly malleable” regulatory standard with “an inherent subjectiveness about it which would allow … impos[ition of] liability on the basis of … tastes or views, or perhaps on the basis of … dislike of a particular expression” (quoting Hustler Magazine Inc. v. Falwell).  Yet, in support of the FCC’s attempt to avoid a vagueness attack through its generic “context matters” approach to defining indecency – an indefensibly inconsistent approach that Justice Kagan justly summarized as, “nobody can use dirty words or nudity except for Steven Spielberg” – the chief justice made a telling slip of pronoun: “All we [sic] are asking for, what the government is asking for, is a few channels where you can say I’m [sic] not going to – they are not going to hear the S word, the F word.  They are not going to see nudity. “

Justice Scalia’s majority opinion in Brown v. Entertainment Merchants Association, the violent video games case, reaffirms that “disgust is not a valid basis for restricting expression” and warns of the “precise danger … that the ideas expressed by speech – whether it be violence, or gore, or racism – and not its objective effects, may be the real reason for governmental proscription.”  But Justice Scalia was very quick to endorse the “symbolic value” articulated in Justice Kennedy’s question as to whether there is “value, an importance, in having a higher standard or different standard for broadcast media on the television … an important symbol for our society that we aspire to a culture that's not vulgar in – in a very small segment?”  So, per Justice Scalia, FCC commissioners presumably may not enforce their own tastes and standards regarding violence, or gore, or racism, but anything touching on sex (well, actually, even just profanity or nudity) is forbidden.  What fate now (pace former attorney general John Ashcroft and the “Spirit of Justice”) for the bare buttocks in the marble friezes adorning the Court itself to which Seth Waxman, representing ABC, called Justice Scalia’s surprised attention?

Justice Kennedy’s remark was by way of prodding the government’s position and well may not reflect his own approach toward mandating mere symbolic value.  After all, Justice Kennedy is the staunchest protector of free speech ever to sit on the Court.  And early in his tenure, his respect for the symbolism of the American flag did not keep him from providing a fifth vote in Texas v. Johnson to overturn a conviction for burning the flag as a political protest, despite the justice’s own, expressed distaste for the result, one that his view of the Constitution demanded.

Justice Alito (who dissented in Snyder and Stevens and concurred only in the judgment in Brown), perhaps searching for an easy way out, observed (to the dismay of attorney Carter Phillips and his client FOX) that “broadcast TV is living on borrowed time.”  So, rather than intervening, perhaps the Court should let the indecency issue “die a natural death.”  But such avoidance of a current constitutional problem because the future supposedly will take care of itself is reminiscent of Justice O’Connor’s controversial majority opinion in the 2003 law school affirmative-action case (Grutter v. Bollinger), an approach that it is difficult to imagine Justice Alito joining there.  

Perhaps the most dismaying aspect of the oral argument was the scant, almost non-existent, reference to the First Amendment and the appropriate standard of review, which in any non-broadcasting context would have to be strict scrutiny for a content-based restriction of pure speech.  The government relied, with encouragement from some justices, on the old shibboleth of broadcasters enjoying a special privilege in the free, licensed use of the public airwaves for which they may be made to pay through public interest obligations, including indecency controls.  So 20th century!  And an argument well characterized even then as a mere “trope” lacking serious analytical basis. 

The only specific rationale advanced to justify the continuing, chilling intrusion on broadcasters’ and the public’s First Amendment rights was the desire to maintain a “safe haven” on broadcast television, in addition to other dedicated family channels already available, where concerned parents may leave their children without fear they may encounter what five commissioners later determine was indecent content.  (Ads, however, for erectile dysfunction medication, with warnings about “an erection lasting more than four hours,” apparently are fine, despite the questions they could prompt in young children mystified by this adult condition but not at all phased by hearing other words with which they are fully conversant.)  Even if such a “safe haven” were desirable, the justices favoring the FCC’s position showed little inclination to consider the dubious constitutionality of forcing it upon broadcasters.

Kudos, however, to advocate Phillips who reminded the Court that the FCC was relying on “thousands of ginned-up computer-generated complaints,” and did not hesitate to tell the Court that it should overrule Pacifica (though this is not necessary to rule in favor of the broadcasters).  In the constitutional highlight of the Court’s unenlightened engagement with fundamental free speech issues, Phillips definitively rebutted Roberts’s reliance on carving out a small safe haven within broadcasting because so many other unrestricted channels are available: “[T]he notion that one medium operates in a certain way in the exercise of its First Amendment rights can be used as an explanation for taking away or for restricting the First Amendment rights of another medium is flatly inconsistent with what this Court has said across the board in the First Amendment context.  You don’t balance off one speaker against another and give one favored status and give another unfavored status.”  Amen.

The usual caveat about trying to prognosticate an eventual decision from oral argument naturally applies.  Justices Ginsburg and Kagan were skeptical of the FCC’s position, as Justice Thomas has been previously, and Justice Breyer was searching for his usual noncommittal, middle-of-the-road resolution.  It is doubtful a majority will emerge to overrule Pacifica, but the FCC’s current indecency policy also is unlikely to emerge intact.  Even a 4-4 split (Justice Sotomayor recused herself) would uphold the lower rulings against the Commission.  Pacifica, unfortunately, may not be as dead as the other broad categories of recent speech restrictions, but it may be left in a vegetative state.

The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.  Prof. Winer is a member of The Media Institute's First Amendment Advisory Council.

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Regulating the ’Net.  Much has been alleged in recent days about the risks to the independence of the Internet were the copyright bills currently before Congress to become law.  As mentioned here and here, the most extravagant of these allegations are flummery of the first water, but copyright issues aside, the ’net is indeed on the cusp of a significant transformation.

Evidence of this can be seen in the actions of the FCC, whether on its own initiative or by its implementation of regulations after passage of legislation into law.  The Commission’s codification of  "net neutrality" rules was the first example of the Internet’s capture.  The action currently underway by the FCC to promulgate regulations re the 21st Century Communications and Video Accessibility Act, a law which, among other things, mandates captioning for online video, is another.

Goes without saying that making online video accessible to the deaf is a nice thing to do, and for many that’s the end of the story.  But people who are familiar with the way laws and regulatory policies evolve know that things like these have a precedential impact in Congress, the courts, and the regulatory agencies, and that very often these precedents are then offered up in justification of other laws or rules that are not so nice.

In any case, the point here is that it’s already too late in the day for people who have an idealistic interest in the Internet to fret the future loss of its independence.  Thanks to the majority at the FCC and/or in Congress, the Internet’s pristine independence has already been lost.

Media Matters.  The organization called Media Matters for America, which exists to demean and (where possible) destroy conservative journalists and organizations like FOX News, has now come out with a contrived accusation against George Will.

The gravamen of MMA’s contrivance is that, as a Board member of a conservative grant-giving group (the Bradley Foundation), Will should be required to mention this connection whenever he writes about or cites the work of any of the groups to which Bradley contributes!

Given that Bradley funds a very large number of conservative think tanks and other enterprises, this would mean, as a practical matter, that Will would have to include this disclosure pretty much all the time since he is, after all, a conservative himself and cites these organizations’ work frequently.

As the Washington Post’s executive editor put it, in reply to a request from MMA for comment: “Is it seriously a surprise to you that George Will quotes experts from conservative think tanks more often than he quotes experts from liberal think tanks?”

What a relief! The latest news is that Keith Olbermann, who is faithfully viewed nightly by at least 16 people, may be staying on at Current TV, a network that captures the imagination of dozens.  

It’s been a close call for the past few days, but as this is being written word is out that Olbermann and management of Current, who have been at loggerheads over something or other, have resolved their differences.  So a country that has been paralyzed with fear that things might not work out can breathe again. What a happy day.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

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For those who believe in words as a medium not just of expression but of discovery, life is a journey made all the more fascinating by the prospect that one may occasionally hit upon a word or a sentence that reveals something profound, even to oneself.  Christopher Hitchens, a man of many words, was such a person.

For those who are unfamiliar with him, the gentleman was a British-American author and journalist.  A prodigious and eloquent writer, Hitchens is perhaps best known for his resolute atheism, ideological tergiversations (from confirmed Trotskyite to alleged neoconservative), and criticism of Islamic jihadism.

With his passing this month, journalism has lost another of the very small number of political commentators who combine the qualities of erudition, scholarship, and the ability to surprise with their take on things.

Not for Hitchens the kind of commentary that centers on campaign strategies, public opinion polls, or political horse races.  For Hitchens, as for William F. Buckley Jr., politics was the stuff of deeper meaning than the careers, or even the policies, of politicians.

The Hitchens-Buckley comparison is apt in another way, too.  Buckley’s Roman Catholicism was central to his political philosophy in much the same way that Hitchens’ atheism was to his.

Hitchens, of course, wasn’t the first person to condemn religion.  H.L. Mencken once defined an archbishop as “a Christian ecclesiastic of a rank superior to that attained by Christ.”  But as agitated atheists often do (because in a calmer state they’d be agnostics), Hitchens traveled way past such witty criticisms into the realm of the proselytizing anti-believer, a posture that, in its anger and simplicity, bears a striking resemblance to religious fundamentalism.

But never mind that.  The fetching aspect of Hitchens’ journalism, apart from the great writing, was its escape from the tiresome cant and clichés of contemporary liberalism – indeed, of all the “-isms.”  Though the man himself, early on and late, was a confirmed leftist, Hitchens’ catalog of the good and the bad gave left-wing ideologues migraines.  He was, for instance, a critic of the Vietnam War but a defender of the Iraqi invasion.  He wrote scathingly of Henry Kissinger and George H.W. Bush, but also of Hugo Chávez, about whom he said the following after a trip to Venezuela:

“After all [Chávez said] there is film of the Americans landing on the moon….  Does that mean the moon shot really happened?  In the film the Yanqui flag is flying straight out.  So, is there wind on the moon?  As Chavez beamed with triumph at this logic, an awkwardness descended on my comrades, and on the conversation.…

“Chávez, in other words, is very close to the climactic moment when he will announce that he is a poached egg and that he requires a large piece of buttered toast so that he can lie down and take a soothing nap.”

More evidence of Hitchens’ maverick ways can be seen in his earlier-mentioned crusade against what he called “fascism with an Islamic face.”  In 2008 he wrote a piece in Slate titled “To Hell With the Archbishop of Canterbury,” a criticism of the quaint suggestion by the archbishop that Britain should adopt a form of sharia law as an adjunct to British common law.  Hitchens’ criticism was greeted by much harrumphing by the politically correct, something that bothered him not at all.

As suggested at the outset, though, Hitchens has left something more than just the sum of his theological or political opinions.  He showed the way to greater readership and distinction for political commentators, editorialists, and columnists.

In a word, he demonstrated the virtue in not allowing oneself to become marginalized; to not write just for a tribe of people with similar beliefs; to be willing to tread even on the sensibilities of those who are often allies.

As seen by the wide and varied number of people who, since his passing, have written flatteringly of him, Christopher Hitchens, the man and the writer, enjoyed an appeal that went well beyond just those who agreed with him.  For one whose life involves the expression of strong opinions, it doesn’t get better than that.

First published in the Dallas Morning News, Dec. 26, 2011.  The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

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The fight over the copyright bills currently being considered in Congress puts on display two of the tech industry’s least attractive characteristics – its sense of entitlement, and its extraordinary lack of knowledge about things outside the area of its core competency.

So it is that the bills in question (the Protect IP and Stop Online Piracy acts) are said by the tech industry’s lobbyists and fan base to threaten the “end of the Internet as we’ve known it,” the same claim they made 13 years ago in opposition to the Digital Millennium Copyright Act.  (And we all know how that worked out.)

As mentioned in an earlier post, all of the techies profess to have an interest in preventing copyright infringement; it just happens that they oppose anything and everything that’s ever been (or will be) proposed for the purpose.

The earlier blog scored the hyperbolic, not to say hypocritical, aspects of the criticism being leveled at today’s copyright bills.  But after reading additional criticism of them published since, it’s clear that I overlooked something.

Though most critics don’t come right out and say so, much of the criticism of the bills springs from people who, convinced that industries like Hollywood and the traditional media are of less importance than the Internet, believe that for this reason copyright laws ought to favor the latter over the former.  As one techno-philosopher, commenting on a piece in TechCrunch put it: “The Internet is the new entertainment industry.”

One needn’t dispute the current and future importance of the Internet (and all things digital) to know that this is an inapposite and corrosive argument, for the simple reason that copyright protection was never designed to be meted out in proportion to the financial dimensions of a company or industry.  It’s a constitutional law that is meant to protect all copyright holders, whatever their commercial girth or market caps.

To put it another way, the Constitution does not have to accommodate industries; industries have to accommodate the Constitution. This is, after all, one of the reasons we call our own a nation of laws.

Because The Media Institute is not a lobby, we’re not in a position to know whether the House or Senate bills will pass either body.  We read that some softening of them may be in the cards, though the recent forceful testimony in support of the bills, as written, by Register of Copyrights Maria Pallante would seem to suggest otherwise.

Whatever the outcome, one thing has been made clear by the tech industry’s shrill opposition.  If U.S. copyright laws – and those people and industries that rely on them – are to survive, there will have to be a far more sophisticated and generous understanding of the value in copyrights generally.  As Ms. Pallante chillingly put it in her remarks to the House Judiciary Committee: “It is my view that if Congress does not continue to provide serious responses to online piracy, the U.S. copyright system will ultimately fail.”

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.